Fadeley v. Commissioner of Social Security

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO DISMISS: It is ORDERED that Magistrate Seibert's 38 Report and Recommendation is ADOPTED; the Commissioner' 17 Motion to Dismiss is DENIED; and the Court RECOMMITS this case to Magistrate Judge Seibert for a recommendation on the merits. Signed by Senior Judge Irene M. Keeley on 6/18/18. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN LEONARD FADELEY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:17CV129
(Judge Keeley)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 38]
AND DENYING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 17]
On July 24, 2017, the pro se plaintiff, John Leonard Fadeley
(“Fadeley”), filed this complaint against the Commissioner of
Social Security (“Commissioner”), seeking review of the final
decision denying his application for disability insurance benefits
(Dkt. No. 1). Pursuant to 28 U.S.C. § 636 and the local rules, the
Court referred the matter to the Honorable James E. Seibert, United
States Magistrate Judge, for initial review.
The Commissioner moved to dismiss the complaint as untimely
(Dkt. No. 17). Following an evidentiary hearing on April 25, 2018
(Dkt. No. 36), Magistrate Judge Seibert entered a report and
recommendation

(“R&R”),

recommending

that

the

Court

deny

the

Commissioner’s motion (Dkt. No. 38). The R&R also informed the
parties of their right to file “written objections identifying the
portions of the Report and Recommendations to which objection is
made, and the basis for such objection.” Id. at 3. It further
warned that failure to do so would result in waiver of the right to

FADELEY V. COMMISSIONER

1:17CV129

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 38]
AND DENYING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 17]
appeal. Id. at 4. Despite receipt of the R&R, neither party filed
objections to the recommendation.
“The Court will review de novo any portions of the magistrate
judge’s Report and Recommendation to which a specific objection is
made . . . and the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the [parties do] not
object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)). Failure to file specific objections waives appellate
review of both factual and legal questions. See United States v.
Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
Having received no objections to the R&R, the Court has no
duty to conduct a de novo review of Magistrate Judge Seibert’s
findings. Furthermore, following a review of the R&R and the record
for clear error, the Court:
1)

ADOPTS the R&R (Dkt. No. 38);

2)

DENIES the Commissioner’s Motion to Dismiss (Dkt. No.
17); and

3)

RECOMMITS this case to Magistrate Judge Seibert for a
recommendation on the merits.

2

FADELEY V. COMMISSIONER

1:17CV129

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 38]
AND DENYING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 17]
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail and
return receipt requested.
Dated: June 18, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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